WRC code on remote working

This Code introduces several new definitions, processes and entitlements for employees and employers regarding to flexible and remote working. This article summarises the key takeaways from the Code for employers to be aware of when reviewing, approving and managing remote and flexible working requests.

Following publication of the Code, employees have the right to request remote working arrangements and the right to request flexible working arrangements for parents and carers. The Work Life Balance and Miscellaneous Provisions Act, 2023 (The Act) provides the right to request remote working arrangements and flexible working arrangements, which are transposed from Article 9 of the EU Work Life Balance Directive. With this Code, Ireland has now fully transposed the Directive.

While many organisations already have flexible, remote, blended or hybrid working policies in place, the Code provides new provisions that employers must reflect in their policies.

Definition of flexible working

As defined by the Code, flexible working is an arrangement where an employee’s working hours or patterns are adjusted to allow them to provide care to a child or adult. Flexible working can take several different forms, such as part-time work, remote working arrangements, job-sharing or flexible working schedules.

To be eligible to make a statutory request for flexible working, an employee must be:

• The parent or acting in loco parentis to a child under 12 years old or under 16 years old if the child has a disability or illness and who is or will be providing care to the child; or
• Providing or will provide personal care to a specified person (child, spouse or civil partner, cohabitant, parent or grandparent, sibling or a person who lives in the same household as the employee) who must require significant care or support for a serious medical reason.

Definition of remote working

The Code defines remote working as an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than the employer’s place of business without change to the employee’s ordinary working hours or duties.

Guidance on flexible and remote working requests

For both flexible and remote work requests, an employee has the right to apply as soon as they start with their employer but must complete at least six months of continuous employment before an approved arrangement can begin. The Code provides template request forms as well as a template work-life balance policy.

Submitting a request

• Requests should be submitted not later than eight weeks before the proposed starting date.
• Requests must be in writing (online applications are acceptable) and signed by the employee.
• Flexible working requests must contain the form of flexible working being requested and the proposed start date and duration. Employers may request additional information on the person in need of care, and as such the Code encourages employees to include relevant information with their application in order to speed up the process. Examples of this information can include medical certificates, birth certificates, and the employee’s relationship to the person being cared for.
• Remote working requests must contain details of the arrangement i.e. how many days of remote work are required, the proposed start and end date (if relevant) and reasons for the request. Reasons for requesting may include reducing the daily commute, personal or domestic circumstances, neurodiversity which may favour a working environment that is not always available in an office, etc.
• Remote working requests must also include details of the proposed remote working location and the suitability of same.

Considering and responding to a request

• An employer must respond no later than four weeks after receiving the request. If the employer is having difficulty assessing the request, this can be extended to a period not exceeding eight weeks.
• The Code provides considerations the employer may take into account when deciding whether to approve or reject a request for remote working, such as, the level of supervision required by the employee.
• When considering a request for flexible working, the employer should consider the business needs and the needs of the employee.
• If a request is approved, the employer is required to prepare an agreement covering the details of the arrangement. This must be signed by both the employer and the employee, retained by the employer and a copy provided to the employee.

Compliance

Employers must retain records of any flexible and remote working arrangements in their organisation. They are liable to a fine of up to €2,500 if found to be in breach of this.

A breach of the Act may be referred to the WRC, citing the Code, within six months of its occurrence. This period may be extended up to 12 months for reasonable cause. The WRC may instruct the employer to comply with specific sections of the Act and/or award the employee compensation worth up to four weeks’ remuneration. The WRC does not have the legal power to assess the decision made by an employer, meaning they can only assess the process which led to the employer’s decision on the request.

How Forvis Mazars can assist you

At Forvis Mazars, our people consulting team is a leading provider of HR services across both the public and private sectors. We have a highly experienced team of subject matter experts ready to support your organisation in managing and implementing the changes brought about by this Code through a range of services, including review and design of your flexible or remote working policies and practices, employment contracts and handbooks, general HR advice and guidance, HR audit, and design and implementation of HR strategies.

For further information on our experience and how we can support your organisation’s HR, employee wellbeing and organisational culture, please do not hesitate to get in touch at info@mazars.ie